Kariuki & 487 others v Athi Water Works Development Agency & 2 others (Environment & Land Petition 3 of 2023) [2024] KEELC 1178 (KLR)
The bottom line
#488 residents challenging the Ndarugu II Dam land acquisition lost because they skipped the Land Act's required dispute process before going to court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection on lack of jurisdiction and non-exhaustion of statutory remedies is merited
The Preliminary Objection succeeds; the Land Act channels compulsory acquisition disputes first to the NLC inquiry under Section 112, then to the Land Acquisition Tribunal under Section 133C, and to the ELC only on appeal on questions of law under Section 133D
The court traced the statutory scheme: grievances on notices of intention to acquire are handled by NLC inquiry (s.112), unresolved disputes go to the LAT (s.133C), and the ELC has only appellate jurisdiction on questions of law (s.133D). The Tribunal's remit covers 'matters relating to compulsory acquisition' broadly, including persons with interests short of ownership, and constitutional complaints under Articles 23(2) and 47(3). Binding superior court precedent (Kibos Distillers, Karume) required exhaustion. Environmental concerns could be raised at NEMA and, if aggrieved, at the NET.
Whether the Petitioners' failure to exhaust remedies divests this Court of jurisdiction
Yes - jurisdiction was improperly invoked and the Court abstained from hearing the matter
Applying Kibos Distillers (Court of Appeal and Supreme Court) and Speaker of the National Assembly v Karume, the court held that where statute provides a clear dispute resolution procedure, it must be strictly followed. Since the compulsory acquisition process was at its infancy and statutory mechanisms (NLC inquiry, LAT, NEMA/NET) were unexhausted, this was a proper case for judicial abstention.
Whether the Notice of Motion for conservatory orders was merited
The Motion was not determined on its merits because the Preliminary Objection, taken first, disposed of the entire suit
The court noted that a successful preliminary objection can dispose of the entire suit, and considering the objection first meant there was no need to consider the merits of the Notice of Motion. The Motion, together with the Petition, was struck out with liberty to pursue grievances in the primary fora under the Land Act.
Legal principles established
#- Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed before resort to court
- Original jurisdiction in a court does not oust the jurisdiction of other competent organs legitimately mandated to hear and determine a dispute
- The Land Acquisition Tribunal's jurisdiction over compulsory acquisition matters extends to persons with interests in land beyond registered owners, and covers constitutional complaints under Article 23(2) and 47(3)
Court orders
#- 1.The Preliminary Objection dated 22/3/2023 is upheld; it succeeds
- 2.The Notice of Motion together with the Petition dated 5/3/2023 are struck out
- 3.Parties are at liberty to ventilate their grievances in the primary fora created under the Land Act
- 4.Each party to meet their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya; Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & 487 others v Athi Water Works Development Agency & 2 others (Environment & Land Petition 3 of 2023) [2024] KEELC 1178 (KLR)", Case Analysis (2024). Petition dated 5/3/2023 (Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1178/eng@2024-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.